Christopher Wheeler was ordered to spend 180 days in jail for contempt of court after he refused to open his phone to authorities investigating the potential child abuse of his eight year old daughter. Mr. Wheeler was arrested on March 6th for aggravated child abuse, domestic violence and child neglect because of “severe brushing, swelling, and scratches” his daughter has sustained. Mr. Wheeler’s phone was seized during his arrest. After his daughter told police “Daddy takes pictures of me all the time with his phone,” police sought to obtain the pictures. Wheeler has plead under oath that he provided the password last month, but the purported password has failed to open his phone. Wheeler began his sentence on May 31, 2017.
Phone passwords are a recent occurrence that law enforcement has faced since 2015, after Apple and Google began allowing consumers to encrypt their phone. According to former FBI Director James Comey, 46% of 6,000 phones seized by federal investigators are protected by passwords that are uncrackable. This includes phones seized as part of terrorism, counterintelligence, gang, and child pornography investigations. There have already been famous incidents where the FBI has to sue Apple in order to obtain the password, such as the San Bernardino, CA shootings.
What's the Law Surroudning Phone Passwords?
The legality of turning over passwords has resulted in conflicting constitutional interpretations. On one hand, photographs and other evidence inside phones legally seized by police should lawfully be part of a prosecutors case. The 4th Amendment only bars police from searching and seizing property if there is no warrant or probable cause. In many of these cases, such as Wheelers, that requirement has been satisfied and prosecutors are legally able to gather the evidence they require to make their arguments.
On the other hand, ordering defendants to provide the password for their own phones could be a violation of the 5th Amendment’s right against self-incrimination. Defendants cannot be ordered to testify against themselves, but providing a password would likely do just that if the information they are ordered to give leads to incriminating evidence.
One of the factual questions is whether the police need the cooperation of the defendants to obtain their evidence. Police normally don’t require defendants to give them the keys to the house before executing a warrant. If police have a warrant to search a house, they just force the door open and search the home. This was the tactic used in the San Bernardino case, as the Department of Justice sued Apple instead of trying to obtain passwords from parties involved.
Although uncrackable phones may delay terrorism, child pornography, or even impeachment proceedings, the alternative would give law enforcement wide latitude to demand that citizens open otherwise private communications and archives to them. Besides, as San Bernardino showed, defendants are not the only method of obtaining passwords.
So What Does that Mean for Law Enforcement?
Law enforcement could still pursue other means, such as asking Apple or Google to crack the password or searching other devices that the defendant might have sent the information to. These alternative methods may be more expensive and burdensome for law enforcement, but if the evidence is worth pursuing, most attorney generals are willing to pay the money. Of course, money is a small price to pay to protect our constitutional rights.
Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law